MEMORANDUM

1.

INTRODUCTION:

The importance of highly qualified and skilled employees employed within the healthcare sector speaks for itself; especially due to the very environment within which nurses are employed, which requires a substantial standard of skill and degree of care by virtue of the fact that human lives may be at stake in the event of failure to exercise the expected standard of care and skill by an employee.

It could be argued that every patient admitted in a hospital should have the confidence that every effort would be utilized to maximise that patient’s chance of recovery, if not survival. 

Therefore, the operational requirements and/or demands by the employer; and the public’s expectation of a “zero tolerance” approach to the incidence of gross negligence is to be expected and respected by every employee employed in the healthcare sector.

The purpose of this memorandum is to attempt to address the problems and difficulties experienced by employers in the healthcare sector in the administration of disciplinary action in the event where an employee stands to be disciplined based on an allegation of negligence. 

The writer will make reference to, and analyse a collection of authoritative materials relevant to the stated problem, which comprise of binding judicial decisions and other persuasive authorities such as Labour Court judgments, arbitration awards and authoritative publications on the subject matter.

2.

WHAT IS "NEGLIGENCE"?

In most arbitration cases which served before the writer and where the Applicant (employee) was dismissed on the ground of negligence, the Respondent (employer’s) disciplinary code or disciplinary rules made reference to the disciplinary offence of negligence, or gross negligence.

It is important to record that strictly speaking the inclusion of “negligence” as a disciplinary offence may lead that the trier of a fact may in error interpret negligence as denoting dolus [intention] which comprises the direction of the will [wilfulness] to commit a prohibited act; or an intention by the employee to deviate from the standard of conduct that the diligens paterfamilias or the notional reasonable man [person] would have adopted.

In order to be negligent, it is not necessary for an employee to have intentionally or wilfully deviated from the standard of conduct that the notional reasonable man [person] would have adopted. It is sufficient that deviation took place. The notion of “wilful negligence” is therefore a contradiction in terms. This notwithstanding, in contemporary labour law it is not unusual for disciplinary codes to contain references to the disciplinary offence of negligence or gross negligence.

To determine negligence the courts employ the classic three-part test as formulated in Kruger v Coetzee 1966 (2) SA 428 (AD).  Holmes JA said the following at 430 E – H:

      “For the purposes of liability culpa arises if -

            (a)  a diligens paterfamilias in the position of the defendant -

                  (i)         would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

                  (ii)         would take reasonable steps to guard against such occurrence; and

(b)   the defendant failed to take such steps.

This has been constantly stated by this Court for some 50 years.  Requirement (a) (ii) is sometimes overlooked.  Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case.  No hard and fast basis can be laid down.  Hence, the futility, in general, of seeking guidance from the facts and results of other cases”. [Courtesy Advocate B Geach SC].

Dismissals are often challenged on the ground that dismissal was an inappropriate sanction in that the employer failed to prove “gross negligence”; and therefore a disciplinary sanction short of dismissal should have been meted out.

The immediate question that comes to mind is what can be termed as “negligence ordinary” or gross negligence, when will it constitute a disciplinary offence, and when will dismissal be justified on this ground?  (See Prof. P.A.K. le Roux, Negligence – The Grounds for Disciplinary Action Contemporary Labour Law Vol. 5 No. 1 August 1995 at 1 to 6).

In the article supra Le Roux observes that the concept of negligence is one which has attracted much attention, not only in the field of Labour Law, however, especially in the field of Criminal Law and the Law of Delict. 

The authoritative materials and literature in respect of the concept of negligence are often technical.  Furthermore, the concept of negligence need not necessarily have the same content in Labour Law as it has in the Law of Delict or Criminal Law. 

A recent reported judgment by the Labour Appeal Court attracted much attention and precipitated debate as to the legal question(s) that arose from the facts and questions of law; specifically as regards gross negligence within the healthcare sector. 

(See Afrox Healthcare Ltd v. CCMA & Others [2012] 7 BLLR 649 (LAC); [2012] JOL 208 779 (LAC); also see Dr. John Grogan, “Deadly Negligence” Employment Law Journal, August 2012 LexisNexis August 2012).  

In order to establish what is meant by negligence, Le Roux supra noted that the undermentioned general principles are relevant.

According to Le Roux supra in general terms, an employee is negligent if his or her conduct deviates from the conduct that a reasonable man [person] would have adopted in the same circumstances.  The following three elements should have to be considered:

According to Le Roux supra in general terms, an employee is negligent if his or her conduct deviates from the conduct that a reasonable man [person] would have adopted in the same circumstances.  The following three elements should have to be considered:

• Would a reasonable man [person] in the particular circumstances of the employee, have foreseen the reasonable possibility that his/her conduct would cause harm to another person or his/her property?

   

• Would a reasonable man [person] have taken reasonable steps to prevent such harm occurring?

   

  If the answer to the above questions are in the affirmative and the employee did not foresee such harm and/or did not take such steps he/she will have been negligent.

   

  In the authoritative publication by Grogan J, Dismissal, Juta 2010 at 200 to 202 the learned author deals with negligence as well as poor work performance.  According to Grogan, negligence is a failure to comply with the standard of care that would be exercised in circumstances by a reasonable person.  In the employment context, there is an obvious overlap between negligence and poor work performance, and perhaps, in some cases, between negligence and incapacity. 

   

  Where negligence or poor work performance results from circumstances beyond an employee’s control, such as physical or mental incapacity, it should be treated as such.  However, it is also permissible in appropriate circumstances to treat both negligence and poor work performance as forms of misconduct.

• Would a reasonable man [person] in the particular circumstances of the employee, have foreseen the reasonable possibility that his/her conduct would cause harm to another person or his/her property?

   

• Would a reasonable man [person] have taken reasonable steps to prevent such harm occurring?

   

  If the answer to the above questions are in the affirmative and the employee did not foresee such harm and/or did not take such steps he/she will have been negligent.

   

  In the authoritative publication by Grogan J, Dismissal, Juta 2010 at 200 to 202 the learned author deals with negligence as well as poor work performance.  According to Grogan, negligence is a failure to comply with the standard of care that would be exercised in circumstances by a reasonable person.  In the employment context, there is an obvious overlap between negligence and poor work performance, and perhaps, in some cases, between negligence and incapacity. 

   

  Where negligence or poor work performance results from circumstances beyond an employee’s control, such as physical or mental incapacity, it should be treated as such.  However, it is also permissible in appropriate circumstances to treat both negligence and poor work performance as forms of misconduct.

   

  The question that arises from the commentary and observations by Grogan and Le Roux is what is meant by a “reasonable man/person”. 

   

  The notional “reasonable person” and the question what would the reasonable person have done under the circumstances based on the notion that the person assumed, has skill, attributes and knowledge of an ordinary person is addressed in the publication by J. Neethling, J.N. Potgieter & P.D. Visser, The Law of Delict¸ Butterworths 1989 110:

   

   "The reasonable man is merely a fictitious person, which the law invents in order to have a workable objective form for conduct in society.  Accordingly, reasonable man is not an exceptionally gifted, careful or developed person, but neither is he underdeveloped, nor someone who recklessly takes chances or who has no prudence.  Between the two extremes the qualities of a reasonable man are found.”

   

  In the healthcare sector and in the event of an allegation of negligence against a nurse, the reasonable person test would not suffice by virtue of the fact that in order to determine whether a highly skilled and specialised worker was negligent, one would not look to the standard of conduct which could be attributed to the reasonable person in the street, but rather to the conduct of a reasonable person with the same degree of skill and knowledge required for that position.

   

  In the much publicised Afrox judgment the Labour Appeal Court scrutinised the merits and found that the employee, a nursing supervisor, had been amiss in his supervisory responsibility over a trainee nurse on duty in the hospital’s ICU ward, and as a consequence of the supervisor’s lack of care which resulted in the death of a patient, the supervisor was correctly dismissed on the ground of gross negligence.

   

  According to Grogan at 201 the test for negligence could therefore not be applied in vacuo or against the standard of reasonable people generally, but in the context of the particular workplace or industry.

   

  3.

   

  GROSS NEGLIGENCE DEFINED:

   

  In order to justify summary dismissal as an appropriate sanction for negligence, the employer carries an onus to prove that the acts or omissions as it manifested constituted gross negligence.

   

  In National Union of Metal Workers of South Africa obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] 5 BALR 481 (MIBC) Van Aarde, C. [at 5.3.5] succinctly defined gross negligence versus ordinary negligence as follows:

   

  “The carelessness or mere failure which constitutes ordinary negligence, changes in gross negligence to an indifference to, and blatant violation of a workplace duty.  Gross negligence can be described as a conscious and voluntary disregard of the need to use reasonable care, which has or is likely to cause foreseeable grave injury or harm to persons, property or both.  It is conduct that is extreme when compared to ordinary negligence.  Gross negligence also focuses on the magnitude of the risks involved, such that, if more than ordinary care is not taken, a serious mishap is likely to occur. ... [At 5.3.6]  Ordinary negligence and gross negligence accordingly differ in degree of consciousness or inattention; and both differ from ‘wilful misconduct’, which is conduct that is reasonable calculated to cause damage or injury.” [Emphasis added].

   

  4.

   

  BRIEF ANALYSIS - AFROX JUDGMENT:

   

  Grogan J in “Deadly Negligence” supra summarized and commented on Afrox as analysed hereunder.

   

  A patient was admitted to a certain hospital’s intensive care unit after surgery.  Doctors thought the patient would recuperate, but he died the next morning.

• It transpired that the patient had developed complications at night which had not been reported to the ICU day staff when they took over.  The nurse/supervisor in charge of the night staff and an assistant were charged with negligence and dismissed. 

   

  The Labour Appeal Court held that even without the testimony of junior nurse, there was abundant evidence to prove that the senior nurse had failed lamentably to perform the duties expected of him.  He was an experienced nurse held in high esteem by his peers. 

   

  On the night in question, the senior had chosen one of the least experienced nurses in the unit to supervise the patient, and had known early in the evening that his subordinate had made incorrect entries on the patient’s chart.

   

  He failed dismally in his duty of due diligence and care expected from a person in his position in that he had not drawn the duty doctor’s attention to the errors committed by the junior nurse.

   

  The Court in effect held that the senior nurse failed to properly supervise his subordinate; and failed to act responsibly when realising that the patient’s condition was deteriorating.

   

  A further aggravating factor was that the senior nurse had simply handed over to the day staff without mentioning that the patient was in difficulties.  The Court found his insistence that the patient had remained in a stable condition incomprehensible. 

   

  In conclusion and of importance was that the LAC accepted that dismissal is “momentous” for most employees.  But in the Afrox case the employee had vast experience and worked in an environment in which most decisions were matters of life or death.  Given the nature of the employer’s business and the public expectation that the business would be conducted properly, the senior nurse’s dismissal was eminently fair.

   

  Upon analysis of Grogan J in the article referred to supra “Deadly Negligence”, the act or omission and the lack of care and skill manifested itself in the form of the conscious and voluntary disregard of a need to use reasonable care, which was likely to cause foreseeable grave injury or harm to the patient as well as to his employer, in that an employer could be held to be vicariously liable by virtue of the demise of the patient.

   

  Our courts have shown to be less tolerant of employees who possess or claim to possess special skills and who, because of their position and experience – qualification – can be expected to be aware of the performance standard set by the employer.

   

  Where the degree of professional skill is required, is on a very high level and potential consequences of the smallest departure of that high standard are so serious, then one failure to perform in accordance with those standards is enough to justify dismissal.  (See Somyo v. Ross Poultry Breeders (Pty) Ltd, [1997] 7 BLLR 862 (LAC).

   

  In conclusion, dismissed employees often use as a defence in cases of dismissal on the gound of negligence lack of; or non-existence of  professional in service training and continued education by the employer either as a complete defence; or as mitigating circumstances. In such event it would be incumbent on the employer to submit evidence in rebuttal, failing whereto the presiding Commissioner may find in favour of the employee and order either retrospective reinstatement or a substantial amount in compensatory relief to the employee.

   

   

  ___________________________

  JOHANN SCHEEPERS

  CCMA Commissioner - Tshwane Region

   

   November 2013